ACLU of Pennsylvania Urges State Supreme Court to End Philadelphia’s Practice of Jailing People Who Can’t Afford Cash Bail

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HARRISBURG — Today, the American Civil Liberties Union of Pennsylvania filed its latest briefings asking the Pennsylvania Supreme Court to enforce the rules for the use of cash bail in Philadelphia’s court system.

“While the courts in Philadelphia have agreed to make some positive steps towards better implementation of the rules regarding the use of cash bail, we hope to soon see that commitment realized,” said Reggie Shuford, executive director at ACLU of Pennsylvania. “We don’t need to change the law or pass new legislation if we want to stop the improper use of cash bail; we just need to follow the existing rules. By clarifying and enforcing these rules, the state Supreme Court can ensure consistency and fairness in Philadelphia, which should then have a ripple effect for all counties in Pennsylvania.”

After observing more than 2000 bail hearings in Philadelphia’s Criminal Justice Center in 2018 and 2019, the ACLU of Pennsylvania sent a letter to judges who oversee those hearings to demand that bail commissioners follow the Supreme Court’s Rules of Criminal Procedure that are in place to prevent people living in poverty from being routinely incarcerated while they wait for trial because they cannot afford to pay cash bail. In 2019, the ACLU of Pennsylvania filed a lawsuit asking the state Supreme Court to enforce the rules, which require deference against cash bail orders.

Today’s filing comes after months of mediation in response to a special master’s report that was submitted to the court in December. The ACLU of Pennsylvania filed its brief alongside the Defender Association of Philadelphia, the District Attorney of Philadelphia and a number of others filing friend-of-the-court briefs, including law professors, former prosecutors, scholars and interdisciplinary experts, the Quattrone Center, and others.

When a person is detained, even if only a few days, they can lose their job, access to vital medical care, an apartment or house, and even their children. Despite these enormous consequences and the fact that anyone charged with a crime is to be presumed innocent until proven guilty, bail hearings that were observed by ACLU staff and volunteers lasted, on average, less than three minutes. Many hearings lasted less than one minute.

“We must get past the notion that the primary job of a judge is to incarcerate people and instead keep the constitutional promise of presumption of innocence as our North Star,” said Nyssa Taylor, criminal justice policy counsel at ACLU of Pennsylvania and a lead attorney in the lawsuit. “All stakeholders in the criminal legal system have a responsibility to ensure that the rules are followed at every step of criminal legal proceedings, from police to prosecutors to judges.”

"Many advocates have pushed for changes to the use of cash bail for years, including our clients the Philadelphia Community Bail Fund, the Youth Art & Self-empowerment Project, the #No215Jail Coalition, along with Keir Bradford Grey at the Defender Association of Philadelphia, and others,” said Mary Catherine Roper, deputy legal director at ACLU of Pennsylvania. “Their leadership has brought us to this tipping point where there's a chance to change how courts in Philadelphia and around the commonwealth use cash bail."

The lawsuit asks for full due process hearings for those defendants that the commonwealth wishes to detain pretrial; that arraignment court magistrates should employ a presumption against the use of cash bail; and that the court expand the use of alternatives to cash bail, such as pretrial notification programs, like texts and phone calls, both of which have been shown to be more effective in ensuring court appearances than monetary bail.

In the lawsuit, the ACLU of Pennsylvania represents nine individuals who have been detained on cash bail orders and two organizations, the Philadelphia Community Bail Fund, the Youth Art & Self-empowerment Project. The plaintiffs’ lawyers include Mary Catherine Roper, Nyssa Taylor, and Hayden Nelson-Major of the ACLU of Pennsylvania and David Gersch and Sally Pei of the law firm Arnold & Porter LLP.